Krishna Panicker vs Kunchu and Another

Koshi, C.J.—The assignee - decree-holder in O.S. No. 923 of 1108 on the file of the Perumbavoor District Munsiff''s Court has preferred this appeal against the, order of the execution Court dated 9-12-1123 that the execution application filed by him on 30-12-1121 was barred by the 12 years'' rule enacted in Section 48, CPC (Section 41, Code of Civil Procedure, (Travancore) since repealed). The Division Bench before which the appeal first came up for hearing referred it for disposal by a Full Bench as it raised some nice questions relating to the law of execution. Before the reference, and as a preliminary thereto, certain findings were called for from the execution Court and the order of reference was made after the findings were received in this Court.

The facts so far as they are relevant for the purpose of the appeal are as follows:

The decree under execution is one charged on immovable properties, and it was passed by the Perumbavoor District Munsiff''s Court on 21-2-1109. At that time the properties directed to be sold, thereunder were within the jurisdiction of the Perumbavoor Court, but before the first execution application was made, the territorial jurisdiction over the local area where these properties are situate happened to be transferred to the Parur District. Munsiff''s Court. The first execution petition was filed before the Perumbavoor Court on 25-7-1109. It asked for several reliefs and also contained a request to send the records to the Parur Court for execution. The Court however only sent a copy of the decree and the certificate of non-satisfaction to the Parur Court. Afterwards, the Perumbavoor Court "struck off" the execution case stating that a copy of the decree and the certificate had been sent to the Parur Court.

After these papers reached Parur, the decree-holder applied to the Court there to send the execution case back to the Perumbavoor Court as certain amounts attached before judgment - which amounts were also attached in other cases - were sought to be brought in to that Court for rateable distribution. The transfer was accordingly made and the execution case thereafter remained on the file of the Perumbavoor Court till 28-4-1119. It is common ground that on that date the decree was a live one. After the retransfer the decree-holder had made more than one execution application to the Perumbavoor Court.

The next execution petition in the case was made on 24-10-1121 before the Parur Court and that was by the assignee-decree-holder, the present Appellant. The original decree-holder expressly agreed to the recognition of the transfer and the execution asked for being allowed in favour of the Appellant. When the petition was taken up for ordering notice to the judgment-debtor it was thought that the decree was attached in execution of two decrees and the Court therefore ordered notices to be issued to the decree-holders in those cases as well. The Appellant tried to satisfy the Court that neither of those attachments did proceed in execution of any decree obtained against the decree-holder but that both the attachments were in relation to decrees passed against the judgment-debtor. The Court was however not satisfied about that position and passed a further order on 9-12-1121 which ran thus - "Issue Notice to the attaching decree-holders also, returnable on 14-1-1122 - Pay deficit process. To 15-12-1121." The Appellant did not comply with the order and on the appointed day the Court "struck off" the execution application.

This was followed by the execution petition from the order dismissing which the present appeal has been brought. It has been mentioned already that this application was filed on 30-12-1121. On the face of it, it was barred by the 12 years'' rule. Ten months and nine days had elapsed after the expiration of 12 years from the date of the passing of the decree. When notice was issued on the petition it was a purchaser of the secured properties that raised objection to the execution and the Appellant contended that he had no ''locus standi'' as his purchase was after the passing of the decree directing the sale of the properties. The execution Court repelled that contention and before this Court no serious attempt was made, in our opinion, rightly, to assail the decision of the lower Court on the point. "However every ground mentioned by the lower Court to repel the argument that the execution was not barred by the 12 years rule was challenged before us and we shall now proceed to deal with them one by one.

The first ground urged before us was that the execution application dated 30-12-1121 from which the present appeal arises was one to revive or continue the petition dismissed on 15-12-1121, i.e., the execution petition dated 24-10,1121. According to the Appellant there was no judicial disposal of that petition, but the lower Court has held that it was a judicial order that was passed on 15-12-1121 disposing of the petition. The first requisite to attract the application of the reviver theory in relation to execution applications is that the previous application should not have been dismissed for any fault or default of the decree-holder. Here it was not contended that the words "struck off" indicated that the disposal was only for what, is commonly called ministerial or statistical purposes. What was contended was that it was a wrong order passed by a mistake of the Court that brought about the dismissal and that it was almost axiomatic that a litigant cannot be made to suffer for the Court''s mistake.

On this hypothesis, it was further argued that the dismissal should be deemed to be void and that that execution petition should be treated as in law pending when the present application was filed on 30-12-1121. No doubt, it is true that there was no attachment of the decree and the Court gave the direction to take out notice to the so-called attaching decree-holders under a mistaken impression. This was one of the points remitted to the execution Court for a finding and that Court''s answer is to the effect that the decree under execution was not under attachment at any time. Before the petition was dismissed the Appellant was however given an opportunity to satisfy the Court that it was unnecessary to issue notices to the decree-holders in the two decrees in execution of which the attachments were said to have been issued, but the Court was apparently not satisfied with the cause shown and accordingly repeated its order to take out notices to them. For non-compliance of that order, it was that the execution petition was "struck off".

We are at one with the lower Court in its view that that order was made on account of the Appellant''s default and that it amounted to a judicial determination of the petition by the Court that it cannot be proceeded with unless notice of the execution was given to these decree-holders. The Court made a mistake and it is true that it was a sad mistake, but a Court has jurisdiction to decide wrong as well as right. If it decided wrong the wronged party can only take a course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed." per Lord Hobhouse in - ''Malkarjan v. Narahari'' 25 Bom 337 (PC) (A).

In order that a later application for execution may be regarded as one for the continuance of the pending proeeedings, the previous application for execution must be treated as one still pending in the eye of the law, and it cannot be so created if it was finally dismissed and disposed of See - Harihar Gir Vs. Dulhin and Others, . We have said that the dismissal of the execution petition of 24-10-1121 was by a judicial order. It was hence final. When the ground of the decision was wrong the Appellant''s duty was to apply for a review of the order of dismissal or to take that order in appeal. Having allowed the order to became final, we cannot now listen to the argument that the order was destitute of legal effect. The first contention that the present execution petition was one to continue the previous one dated 24-10-1121 is therefore devoid of merit and it was rightly repelled by the lower Court.

Before we proceed to deal with the alternative argument as to reviver we desire to mention that we have not omitted to notice that the petition of 24-10-1121 itself was filed beyond 12 years of the date of the passing of the decree. One of the points on which the finding of the execution Court was called for was whether this petition was a fresh application within the meaning of Section 48, Code of Civil Procedure, or was only one to revive some earlier application. The finding recorded by the execution Court is unfavourable to the Appellant but, in view of certain exclusions claimed by the Appellant of certain periods during which execution of decrees was prohibited by the Travancore judgment Debtors'' Temporary Relief Proclamations of 1110 and on account of the fact that the decree had fixed two months'' time for payment we assumed, without deciding, that the application was within the 12 years'' period fixed by Section 48, Code of Civil Procedure.

The alternative argument as to reviver is that even if the execution petition of 24-10-1121 is considered to have been judicially disposed of, the present application must be deemed to be one to revive or continue some earlier applications which were not judicially disposed of or which contained. Unspent or unexhausted prayers. This argument either is not in the circumstances of the case available to the Appellant. We shall here make Anr. assumption in his favour and that the effect that by some process of judicial rationalization it is possible to accept the argument that the execution petition of 24-10-1121 was one to revive some prior applications. The judicial disposal of a subsequent execution petition which could be held to be a continuation of prior applications amounts to a final order on prior applications even when they could be deemed to be pending and capable of revival. See - ''Kuruvila v. Kocheepen'' 1946 KERLR 196 (C) and - ''Mohammathu Ummal v. Mohammad Ummal Pathummal'' AIR 1951 KERLR (D). The judicial disposal of the execution application of 24-10-1121, would hence tantamount as well to a final and conclusive disposal of all previous applications, assuming that any of them can be deemed in the eye of the law to have been pending when the order of 16-12-1121 was passed.

Nor would the fate of the argument be any the different on the basis of the finding of the execution Court that the application of 24-10-1121 was a fresh application for execution and not one seeking to revive any previous application. In that view of the matter, the Appellant will be considered to have had no intention of pursuing the previous applications, but of having abandoned them altogether. - ''Maha Raja Bahadur v. A.H. Forbes'' AIR 1929 PC 209 (E); -''Variath Ouseph v. Ouseph Ouseph'' 36 KERLR 797 (F). The orders on the fresh application must be deemed to have set the seal of the Court''s approval to such abandonment and to have the effect of preventing any subsequent revival of the previous applications.

The second ground on which the Appellant sought to bring the case out of the mischief of Section 48, Code of Civil Procedure, was that before 12 years had elapsed the judgment-debtor had acknowledged the decree debt in writing in two petitions, one in an Insolvency application filed by him before the Parur District Court in 1114 (I.P. 12/14) and the other in a civil miscellaneous petition he filed before the Parur District Munsiff''s Court in O.S. No. 1018 of 1108 on 3-8-1121. Prima facie the latter date is beyond 12 years of the decree. But it would be within 12 years if the exemption the Appellant claims under the heads mentioned in a preceding paragraph are taken into account.

There was however only a faint attempt to sustain the appeal on this ground. The Appellant''s learned Counsel conceded that he could not find a single case to support the argument that Section 48, CPC was controlled by Section 19, Limitation Act. Causes to which it applies, in Clauses (a) and (b) of Sub-section (1), Section 48 fixes unalterable dates for the commencement of the period of limitation prescribed by it. The effect of an acknowledgment u/s 19, Limitation Act, is to furnish a fresh start for purposes of limitation and to apply the provisions of that section to the period of limitation prescribed by Section 48, CPC would be to render the provisions of the latter section largely nugatory. The case law bearing on the point has all been reviewed in - ''Sankara Iyer v. Ganapathy Iyer'' 37 KERLR 358 (FB) (G) and -''Mathen v. Ouseph'' 1947 KER LR 185 (FB) (H). In - ''Sankaran Raghavan v. Narayanan Kesavan'' AIR 1953 KER 539 , this-Court adopted the view that Section 19, Limitation Act, did not control Section 48, Code of Civil Procedure. The second ground urged before us in the appeal also therefore fails.

The third and the last ground urged was that in computing the period of 12 years u/s 48, the period from 4-7-1116 to 3-5-1119 should be excluded in that the judgment-debtor was adjudicated an insolvent on the former date and the order of adjudication annulled on the latter date. Section 78(2), Provincial Insolvency Act, 1920 (which corresponds to Section 80, Travancore Insolvency Act 8 of 1108) enacts as follows:

(2) where an order of adjudication has been annulled-under this Act, in computing the period of limitation prescribed for any suit or application for the execution of a decree (other than a suit or application in respect of which the leave bf the Court was obtained under Sub-section (2) of Section 28) which might have been brought or made but for the making of an order of adjudication under this Act, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded;

provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this Act.

Section 28, Sub-Section 6 (corresponding to the proviso to Sub-Section 2 of Section 28 - Travancore Insolvency Act) however provides that the Insolvency proceedings are not to affect the power of any secured creditor to realise or otherwise deal with the security in the same manner as he would have been entitled to realise or deal with it if no order of adjudication had been made. The fact that the judgment-debtor was adjudged an insolvent did not therefore stand in the way of decree-holder putting his decree into execution. No question of exclusion of any period of limitation can hence arise by virtue of Section 78(2). See - ''Sri Ram Kaur v. Rama Prasad Ghosh'' AIR 1929 Oudh 71 (J).

Besides, the proviso to Section 78(2) quoted above makes it clear that in order to claim exclusion under the section two conditions must be satisfied, namely, that the debt in question must be one "provable" under the Act and secondly that it must have been "proved". Admittedly, no attempt was made by the decree-holder to prove his claim in the Insolvency proceedings. Apart from the fact that the language of the proviso is clear, decided cases have unequivocably laid down that exclusion can be claimed only when these two conditions are satisfied. We need only refer here to the Privy Council decision in - AIR 1943 98 (Privy Council) and to a decision Krishnaswamy Iyengar J. rendered in - ''Sogmull Lachiram bears the same number) of the Provincial Insolvency Act, 1920. The decree-holder ignored the insolvency proceedings altogether and did not attempt to give proof of his claim in that proceedings. The said omission of the decree-holder is yet Anr. reason why the Appellant cannot claim any exclusion of time u/s 72(2).

We are not unaware that a liberal construction is sometimes given to the manner of proof of a debt for the purpose of Section 78(2), Notwithstanding the Privy Council decision in - AIR 1943 PC 98 (K) where it is stated that a creditor proves his debt when he lodges a proof in the mode prescribed by the Statute, i.e. by fulfilling the requirements laid down in Section 49 of the Act, it has been held in some subsequent cases that Section 49 provides only one of the modes in which a debt may be proved, - Satyabadi Sahu and Others Vs. Sri Jagannath Mahaprabhu, , is an instance in point. There is however almost unanimity of judicial opinion now that for the purpose of claiming the exclusion of time u/s 78(2) there must be proof of the debt in the Insolvency proceedings after the order of adjudication and before the order of annulment. See - Satyabadi Sahu and Others Vs. Puri Bank, Ltd., and - ''Palaniyandi v. Palanivel'' AIR 1949 Mad 683 (O).

We refer to these cases to show that however liberal the view as to the manner of proof of a claim for purpose of Section 78(2) is held to be, the admission by the judgment-debtor of the debt in his application to declare him an insolvent will not amount to proof of the debt within the meaning of the section. Cases have expressly ruled that way and we shall only refer to two of them, viz., - Velagaleti Veerayya Vs. Kandeppu Narasimha Rao by mother and next friend Venkatasubbamma and Another, and to - ''Fazul Azim v. Tulshi Ram'' AIR 1938 Oudh 8 (Q). As pointed out by Sir Dinshah Mulla at page 568 of his Law of Insolvency in British India, the decisions which take a contrary view ignore the words ''under this Act'' which occur at the end of the proviso to Section 78(2). Sections 33, 34 and 49 of the Provinical Insolvency Act (corres- ponding sections of the Travancore Insolvency Act bear the same numbers) make it abundantly clear that these sections contemplate the proof of debts only between the date of the adjudication and the date of the order of the annulment. The admission of a debt in an insolvency petition by the debtor will not fall within these limits.

Section 78(2) also cannot therefore take the Appellant''s case out of the 12 years'' rule of limitation prescribed by Section 48, Code of Civil Procedure. The exclusion of time claimed on account of the two Travancore judgment Debtors'' Temporary Relief Proclamations and the two months'' period fixed by the decree for payment would in all cover only a period of eight months. The present execution petition was filed more than ten months after the date of the passing of the decree.

The appeal hence fails and it will stand dismissed with costs.